|
Having ridden motorcycles for over 30 years and represented motorcyclists for over 25 one rule I have learned is that in a car v. motorcycle collision the motorcyclist will be presumed guilty until proven innocent. Law enforcement officers will almost always apply a presumption of fault to motorcyclists. Investigation and reports will often be slanted against the motorcyclist. It is important that any attorney taking on a motorcycle case understand just what they are up against and how to fight back. Tip: One quick way to know you are NOT dealing with an experienced motorcycle attorney is if he or she takes both the passenger and the operator on as clients before the opposing driver's liability is conceded. Even in the clearest cases a conflict will almost certainly arise between passenger and operator. Certainly part of investigator and witness bias is prejudice but another aspect has to do with the nature of motorcycle collisions. In many of these the motorcylcist is not talking, at least not right away. Under the theory that "he who lies first lies best" the motorist almost always gets the first version of the event into the record. Conclusions drawn from that version can be hard to shake sometimes even leading to referral of motorcyclists for prosecution in cases where they are completely free of fault. In one recent case the automobile driver claimed our client had failed to stop at a stop sign and suddenly pulled out in front of him. The Client was actually arrested at the hospital and then released. The case was referred to prosecutors as a "vehiclular assault" alleging our client had recklessly endangered his passenger and others. We took up the case and within a day I met a reconstructionist at the scene and began reinterviewing witnesses. Our investigation disclosed that not only was the defendant lying but the physical evidence, and eye witnesses the officer had refused to listen to, contradicted the defendant's tale. The collision had occured in our client's lane of travel while he was stopped with his feet on the ground. Everyone knows that modern (like in the last 30+ years) motorcycles have an ignition to lights interlock that automatically turns the lights on when the engine is started. In one case our client had just upgraded to an 1800 CC Suzuki fully decked for touring. The bike had three white and two yellow lights forward, side lights and running lights. On an otherwise unremarkable October evening the defendant pulled out of a parking lot crossed three lanes of traffic and broadsided the motorcycle. The defendant claimed the motorcycle was driving without lights and her insurance company eagerly pursued that defense. Expert examination of the filiments in the lights confirmed they were all working properly. For this reason it is important to secure the lights as soon as possible and have them examined by a qualified expert. Speed will aways be raised as well. Studies show that witnesses over estimate the speed of motorcycles almost without exception. The louder the bike the greater the over estimate. It is a rare case where some witness does not come forward to claim the motorcycle was "roaring" at "high speed" down the road. Often these claims will be contradicted by physical evidence and credible witnesses but the defense can be counted on to market whatever they have. Helmet certification is another area that the defense will try to exploit. If the helmet is not certified we anticipate that issue to be raised even if a head injury did not occur. Another favorite defense tactic is to cook up some evasive maneuver the motorcyclist could, should or would have made but for ______(fill in the blank). Fortunately we in Washington have a case that prevents the use of speed in excess of the posted limit to be used as a defense when speed caused the motorcycle arrived at the collision point at the same time as the other vehicle. Creative defense lawyers will try to get around this by claiming that but for the speed the motorcyclist would have been able to stop, swerve, lay the bike down or some other creative evasive move. Knowing the defense tactics and anticipating them goes a long way toward ensuring a good result. If you are seriously injured in a motorcycle collision it is important to screen your attorney for experience in such cases. Does he or she know the experts who can make your case? Has he or she actually worked up such cases for trial, tried them and cross examined the defendant's experts? You should ask these questions.
In earlier blogs I pointed out the need for a careful investigation of even the most clear cut cases. Two of the most popular defenses are avoidability and deception. One aspect of deception is the claim that the motorcycle did not have operational lighting. We had the officer take the light bulbs from the motorcycle so an examination could be made to determine if the hedlight was more likely on than off at the time of the collision. A lighted filiment will withstand impact and remain intact. The fact that a light still works after a crash is strong evidence that the defense claim is false. The attached photograph shows a bulb with an intact filiment. Disappointed by this disproof of the defendant's claim that the motorcycle headlamp was not lit the defense went on to make two other claims. Those will be covered in a future post.
Attachments:
MVC-535F.JPG
Permalink
A favored driver's speed in excess of the posted speed limit alone, does not raise a defense of comparative fault by the disfavored driver who failed to yield. Under most circumstances excessive speed by the favored driver is irrelevant. Experience however shows that insurers and their counsel will use any tactic to try to avoid a fair allocation of fault. The favored defense is to claim that but for the motorcyclists speed he or she would have been able to avoid the collision. In a case where stopping, even from below the speed limit, was impossible the defendant driver claimed the motorcyclist could have swerved around the back of his car had he been going slower. In another case the argument was that the 5-8 mph the motorcyclist was allegedly over the speed limit prevented him from stopping short of the vehicle that turned across his path. In both cases investigating officers saw fault as clear and cited the other driver. In both cases the insurer hired an "accident reconstructionist" who developed the defense theory. These are simply two more examples of why an early and careful investigation is a must in every motorcycle case.
Attachments:
MVC-004S.411
Permalink
|
